TaxTMI 
TaxTMI 
2019 (7) TMI 1085
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....nst the provisions of law and facts of the case. 2. The learned CIT(A) erred in deciding the reassessment proceedings are in accordance with the law. 3. The learned CIT(A) erred in not accepting the legal position that notice u/s. 148 of the I.T.Act when it was issued by DCIT, Range 3(1) and subsequently when the jurisdiction was given to ACIT, Range-5(1), the incumbent officer who completed the assessment has to issue notice u/s.148 of the I.T.Act for assuming proper jurisdiction to assess the assessee company. 4. The Ld.CIT(A) ought to know that the assessment was originally completed u/s.143(3) accepting claim u/s8OIB of the I.T.Act and in the reassessment proceedings the claim cannot be rejected on mere review of the earlier decision without there being valid reason either on facts or in law to disallow the same. 5. The Ld.CIT(A) ought to know that when all the conditions stipulated u/s.801B(10) of the I.T.Act have been fulfilled, the claim has to be allowed and it cannot be rejected for mere technical issues, if any. 6. The Learned CIT(A) ought not to have disallowed the deduction u/s.801B(10) of the IT Act merely considering that assessee could not produce completio....
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....at the project was not completed within the specified time limit of 4 years as specified in section 80IB(10), the deduction granted to the assessee in the earlier years should be withdrawn. In the original assessment order the Assessing Officer had attached note (as per page 2 of the assessment order dated 25/03/2013) as under:- "However, the conditions prescribed for allowing deduction u/s 80IB have to be verified thoroughly while completing the assessment for the A.Y. 2009-10 (4th year from commencement of the project) and in case the assessee fails to furnish completion certificate of the entire project, the deduction allowed in this year and also the deduction if any allowed during the A.Y. 2006-07, 2008-09 has to be disallowed and the entire income derived from the project has to be brought to tax." The Assessing Officer found that the assessee did not file the returns of income for the A.Ys. 2008-09 onwards, thus, violated the conditions of section 80IB(10). Therefore, case was reopened u/sec.147 by issuing notice u/sec.148 on 04/11/2011 and called for explanation of the assessee as to why the deduction claimed u/sec. 80IB should not be disallowed. The assessee filed expla....
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.... the relevant parts of the order in his order and accordingly held that completion certificate is must and the assessee would entitle for deduction u/sec. 80IB(10) only on submission of the completion certificate once the project is completed. 6. Against the order of the ld. CIT(A), the assessee is in appeal before this Tribunal. 7. During the appeal hearing, ld.AR argued that the ld. CIT(A) decided the appeal against the assessee for non-submission of completion certificate. The assessee has applied for completion certificate vide order dated 25/11/22008 before the Commissioner, GVMC, however, municipal authorities did not respond to the request made by the assessee and did not issue the completion certificate. As per clause (21) of Municipal Administration and Urban Development Rules, occupancy certificate is mandatory before occupying any person to such building. Since flats are occupied by the owners of the building, the building is deemed to be completed in all respects. The ld.AR further submitted that for obtaining occupancy certificate, sanctioning authority shall examine the number of floors constructed etc. and they are in accordance with rules or not? There was no prov....
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....he assessee has not completed the project, hence, reopened the assessment by issues of notice u/sec. 148 of the Act. During the course of assessment proceedings, the assessee did not furnish the project completion certificate as required u/sec. 80IB(10) of the Act. Now the assessee came with a proposal that the assessee had applied to GVMC for issue of project completion certificate, but the GVMC did not respond to the request made by the assessee and the assessee has furnished the copy of letter in paper book stated to be submitted before the GVMC, dated 25/11/2008 which reads as under:- Dt. 25/11/2008, Visakhapatnam. To The Commissioner, GVMC, Visakhapatnam. Respected Sir, Sub:- Requisition for completion certificate of apartment buildings. We are requesting you to issue the completion certificate of our apartment buildings located in Survey No. 23/1 & 2 at Pothina Mallayya Palem, Visakhapatnam our accounts finalisation purpose. Sl.No. Name of the Buildings RC Nos. Survey No. 1 Aswini Arcade 427/99 23/1 & 2 2 Bhawana Arcade 422/99 23/1 & 2 3 Amritha Arcade 160/04 23/1 & 2 4 Keerthana Arcade 160/04 23/1 & 2 Thanking you, Sir, &nbs....
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....accordance with the specified designs. c) Insurance policy for the completed building for a minimum period of 3 years. d) An extract of the site registers, containing inspection reports of Site Engineer, Structural Engineer & Architect." The assessee did not place copy of building completion certificate issued by the Architect, structural stability certificate issued by the Structural Engineer, insurance policy for the completed building for a minimum period of 3 years, which are the conditions stipulated by the VUDA for issue of occupancy certificate. Apart from the above, the assessee also required to submit fire safety certificate from the Fire Department. Unless the assessee satisfies all the conditions imposed at page No.6, GVMC need not issue completion certificate. Letter dated 25/11/2008 annexed at page No.7 does not indicate having completed the project as per the plan according to the conditions. Completion certificate is not a formality but it is mandatory. Project completion certificate only shows whether project is completed in accordance with the plan issued by the local authority, whether all the conditions imposed in the sanctioned letter are completed or not? ....
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....dered by the ITAT in the case of M/s. Vishnu Builders has no application to the assessee"s case. The assessee also relied on the decision of the Hon'ble Gujarat High Court in the case of CIT vs Tarnetar Corporation (26 taxmann.com 180) and the facts of the case are that The assessee had completed the construction two years before the final date and had applied for BU permission. Such BU permission was not rejected on the ground that construction was not completed, but some other technical ground. In that view of the matter, granting benefit of deduction cannot be held to be illegal.In the case of the assessee the assessee has not submitted any evidence to show that the assessee had complied with the terms and conditions imposed by the VUDA in the sanctioned plan dated 17/11/2005. The assessee not even filed an evidence to show that it had applied for completion certificate for granting the deduction u/s 80IB which is a mandatory requirement. Therefore, the case-law relied on by the assessee is no way helpful to the assessee. The other contention of the Ld.AR is that there is no rule to issue completion certificate in the Municipal Administration and Urban Development Rules a....
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....of the project. The coordinate bench relying the CBDT circular held that in percentage completion method of accounting it is not mandatory to submit the completion certificate every year and it is sufficient to submit the completion certificate within the specified time as per the act. For the sake of convenience, we extract the relevant part of the order of the ITAT, Hyderabad [(2013) 37 CCH 94 (Hyd-Trib.)] the case cited (supra):- "16. The meaning of "date of completion" has been given in Explanation (ii) to clause (a) to section 80IB(10). Date of completion of construction would mean date on which completion certificate in respect of housing project was issued by the local authority. To grant deduction u/s. 80IB(10) it is mandatory to furnish the completion certificate of the housing project but the persistent question here is whether for giving benefit of deduction u/s. 801 B(10), where an assessee is following the percentage completion method is it necessary to obtain such completion certificate for each year of assessee's claim or it is sufficient that certificate is obtained on the completion of the housing project as a whole. Stipulation for obtaining completion certific....
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.... completion certificate should be there in every year of the project span. The certifications are for ensuring that the project span does not exceed the prescribed period and nothing more. Of course if such period exceeded the prescribed limit, Revenue would be well within its rights to withdraw the claims already allowed, following the procedure prescribed under the Act. Thus, the Assessing Officer cannot insist on the completion certificate in the impugned year. This view has also been taken by CBDT in its Instruction No. 4 of 2009 dt. 30.6.2009, paras 2 to 4 of which are reproduced hereunder: "2. Clarifications have been sought by various Chief CITs on the issue whether the deduction under s. 801B(10) would be available on a year-to- year basis where an assessee is showing profit on partial completion or if it would be available only in the year of completion of the project under s. 80 IB( 10). 3. The above issue has been considered by the Board and it is clarified as under: (a) The deduction can be claimed on a year-to-year basis where the assessee is showing profit from partial completion of the project in every year. (b) In case it is late and it is found that the con....
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....g Officer u/sec. 115WE (3) r.w.s. 115WG of the Act. The AO assessed the total fringe benefits of Rs. 7,23,853/- and determined the tax payable of Rs. 6,22,470/-. 13. The assessee went on appeal before the ld. CIT(A) and the ld. CIT(A) dismissed the appeal of the assessee in limine without giving opportunity to the assessee, hence, assessee is in appeal before this Tribunal. 14. During the appeal hearing, ld.AR argued that the ld. CIT(A) taken a decision to dismiss the appeal in limine without giving opportunity to the assessee. As per column 15 of Form No.35, the assessee had attached the reasons for delay in filing the appeal, which was not considered by the ld. CIT(A). Therefore, ld.AR requested to remit the matter back to file of the ld. CIT(A) to condone the delay and to decide the appeal on merits. 15. On the other hand, ld.DR supported the order of the ld.CIT(A). 16. We have heard both the parties and perused the material placed on record. 17. In this case, there was a delay of 92 days in filing the appeal and the Ld.CIT(A) dismissed the appeal in limine without giving opportunity to the assessee to explain the reasons. The ld. CIT(A) ought to have given opportunity to t....